Watts v. Smith

• Citation: 134 N.W.2d 194,375 Mich. 120
• Decision Date: 09 April 1965
• Docket Number: No. 38,38
• Parties: Theron WATTS, Plaintiff and Appellant, v. Mack Wayne SMITH and R. B. Havers, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 194

134 N.W.2d 194

375 Mich. 120

Theron WATTS, Plaintiff and Appellant, v. Mack Wayne SMITH and R. B. Havers, Defendants and Appellees.

No. 38.

Supreme Court of Michigan.

April 9, 1965.

Leitson, Dean, Dean & Abram, by Robert Abram, Flint, for plaintiff and appellant.

Gault, Davison & Bowers, by Matthew Davison, Jr., Flint, for defendant and appellee Mack Wayne Smith.

Before the Entire Bench.

SMITH, Justice.

This is a pleading case in which a misjoinder of parties defendant and of causes of action was ruled by the trial court. The court held, in applying Rule 206, GCR 1963, that 'joinder would not aid the convenient administration of justice.' Before issue was joined, an order dismissing defendant Smith as a party was entered.

The facts are simple: plaintiff was a passenger in a car which was struck from the rear twice in one day--once while plaintiff and his driver were enroute to work in the early morning and the second time in the afternoon while they were returning from work. Defendant Havers is allegedly responsible in law for the morning collision and Smith the one in the afternoon. Plaintiff asserts in his declaration and bill of particulars filed December 31, 1962, that after the morning collision he 'felt a generalized pain in his head and back,' but continued to work. He says he worked a full 8-hour day 'with pain in his back, headache, and a feeling of fatigue.' After the afternoon collision which was more violent, plaintiff went home 'with pain in his neck and back.' The next day, he went to work, despite the pain, but in less than an hour went to the 'Plant Hospital which rendered first aid.' He completed his workday but 2 days later went to a hospital where he was treated, X-rayed and released. Several days later he returned to work but was unable to continue.

In his declaration filed December 31, 1962, plaintiff asserts 'That the Defendants herein are liable for the personal injuries and damages to your Plaintiff by reason of their negligence on February 26, 1962. Both collisions causing the following injuries.' (Emphasis added.)

Plaintiff argues here, as he did below, that he 'will suffer an irreparable injustice if these causes are separated and would put the Plaintiff, the innocent party, in a position where he would be required to prosecute separate suits, where the defense of each could be the uncertainty of the injuries.'

Rule 206.1, GCR 1963, as to permissive joinder of parties, reads in part as follows:

'All persons may be joined in 1 action as defendants

'(1) if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action; or

'(2) if it appears that their presence in the action will promote the convenient administration of justice.'

Accepting the allegations of plaintiff's declaration as true, that is, he suffered a single indivisible injury as a result of successive negligent acts of defendants, we conclude that plaintiff had a right to maintain his action against both defendant Smith and defendant Havers in the same suit. The order dismissing should, therefore, be reversed.

The rule applicable to this case is stated in Meier v. Holt, 347 Mich. 430, at page 438, 80 N.W.2d 207, at page 214:

"Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tort feasors, if the cumulative effect of their acts is a single, indivisible injury, which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort feasors; whereas, if the results, as well as the acts, are separable, in theory at least, so that it can be said that the act of each would have resulted in some injury, however difficult it may be as a practical matter to establish the exact proportion of injury caused thereby, each can be held liable only for so much of the injury as was caused by his act.' 1 Cooley on Torts, 4th Ed., § 86, pp. 279, 280.'

If after further proceedings before trial, it should appear necessary to prevent prejudice, or if it should appear to be in furtherance of the convenient administration of justice, the trial court may, within its sound discretion, order separate trials as permitted in Rule 505.2, GCR 1963, or sequential treatment of issues as provided in Rule 509.3, GCR 1963. Otherwise, the matter may proceed to joint trial under proper instructions embodying the rule in Meier and predecessor cases. If deadlock should develop over apportionment of damages, it would then be incumbent upon the trial court to consider the language of Maddux v. Donaldson, 362 Mich. 425, beginning at page 432, 108 N.W.2d 33, at page 37:

'But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort feasors, this is the point where the road of authority divides.' See the suggested answer at p. 436, 108 N.W.2d 33.

Reversed and remanded for further proceedings. Costs to plaintiff.

KAVANAGH, C. J., and SOURIS, O'HARA and ADAMS, JJ., concurred with SMITH, J.

BLACK, Justice

GCR 206.1 permits the plaintiff to join defendants when, as pleaded here, there is asserted a right to relief in respect of or arising out of the same series of occurrences, and if a question of law or fact common to them will arise in the action. It does not decide that separate issues, if such are established when the pleadings are complete and pretrial summary has been filed, must be tried together. That question is generally a matter of judicial discretion per GCR 206.2, 207 and 505.2. It has not arisen in this case as yet and requires no present discussion.

The narrow question decided below and brought here is whether this plaintiff was possessed of permissive right to join the two defendants. GCR 206.1 answers that question affirmatively. The result is that the circuit judge erred in this case when he dismissed one of the two defendants on motion assigning, as sole ground for dismissal, 'improper joinder of parties defendant.'

The question is procedural. As for the substantial rights of the parties, I suggest (simply to avoid misunderstanding as the case proceeds) that we should reiterate adherence to Cooley's text, quoted in Meier v. Holt, 347 Mich. 430, 438, 439, 80 N.W.2d 207, in Maddux v. Donaldson, 362 Mich. 425, 450, 108 N.W.2d 33, and in Justice Smith's opinion of instant Watts. Also, as before, we should make definitely clear the limited essence of Maddux' holding. It is simply this: In the application of Cooley's said taxt, no one or all of the alleged tortfeasors should be absolved as a matter of law, simply because of the complexity of the injury or injuries plaintiff has suffered. See Maddux at 432, 434, 436, 108 N.W.2d 33.

Note that such essence was expressly taken, by former Justice Smith, from Cuddy v. Horn, 46 Mich. 596, 603, 10 N.W. 32. That was a case where 'simultaneous' negligent acts of the masters of the steamer 'Garland' and the steam-yacht 'Mamie' resulted in a marine collision and the death by drowning of plaintiff's decedent, a passenger on the 'Mamie.' Then examine Albrecht v. St. Hedwig's Roman Catholic Benevolent Society, 205 Mich. 395, 171 N.W. 461, wherein the importance of the time-differential was stressed in connection with what had been found in Cuddy v. Horn. ¹ The Court said, in Albrecht at 399, 171 N.W. at 462:

'There was no concert of action between those who were charged jointly with the unlawful assaults. Plaintiff's counsel, however, claims that they shoud be jointly liable because the amount of damages done by each of the claimed assailants cannot be separated. With this contention we cannot agree. The rule is thus stated in 38 Cyc. p. 484, where it is said:

"The fact that it is difficult to separate the injury done by each from that done by the others furnishes no reason for holding that one tort-feasor should be liable for the acts of others with whom he is not acting in concert.'

'See Strawbridge v. Stern, 112 Mich. 16, 70 N.W. 331; Diel v. Kellogg, 163 Mich. 162, 128 N.W. 420. It should be borne in mind that in the present case the tortious acts complained of were not contemporaneous, but some time elapsed between them, and they were in no way connected, which was not true in the case of Cuddy v. Horn, 46 Mich. 596, 10 N.W. 32, 40 Am.Rep. 178, relied upon by plaintiff's counsel in his brief.'

The time element in these cases is usually crucial to decisions the trial judge must make when he prepares to instruct the jury. It is so because, if there is a lapse of appreciable time between the consecutive blows, that lapse usually provides some proof or inference from proof, on strength of which the trier or triers of fact may and accordingly should assess the plaintiff's damages in separate amounts, 'however difficult it may be as a practical matter to establish the exact proportion.' On the other hand, if the time element is too short for such proof, or if other factors combine to eliminate any such proof, the jury should be instructed that the causally negligent actors 'are to be held liable as joint tort feasors.'

By the above I follow directly what was separately written in Maddux, 362 Mich. at 450, 451, 108 N.W.2d at 45. ² The experience of four years intervening since release of Maddux suggests generally that such separate writing is the best way to approach pertinent legal questions, one after the other as they arise in these successive impact motor accident cases, whether such questions arise upon motion or upon preparation of jury instructions.

Maddux has just been brought up to date by an exhaustive annotation due to appear in 100 A.L.R.2d starting at page 16, 'Apportionment of damages involving...